United States v. Sanders , 67 M.J. 344 ( 2009 )

UNITED STATES, Appellee
v.
Andre M. SANDERS, Staff Sergeant
U.S. Air Force, Appellant
No. 09-0013
Crim. App. No. 36443
United States Court of Appeals for the Armed Forces
Argued April 15, 2009
Decided May 12, 2009
PER CURIAM
Counsel
For Appellant: Captain Tiaundra Sorrell (argued); Colonel Nikki
A. Hall, Major Shannon A. Bennett, and Captain Michael A. Burnat
(on brief).
For Appellee: Major Jeremy S. Weber (argued); Colonel Gerald R.
Bruce (on brief); Major Donna S. Rueppell.
Military Judge: Barbara E. Shestko
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Sanders, No. 09-0013/AF
PER CURIAM:
We granted review to consider whether the military judge
erred by admitting a handwritten letter found in Appellant’s
cell during the sentencing phase of the court-martial. We hold
that any error did not materially prejudice the substantial
rights of Appellant, and affirm the decision of the United
States Air Force Court of Criminal Appeals (CCA).
I. Background
A military judge sitting as a general court-martial
convicted Appellant, contrary to his pleas, of forcible sodomy,
assault, and indecent assault. Articles 125, 128, and 134,
Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 925, 928,
934 (2000). The military judge sentenced Appellant to a
dishonorable discharge, confinement for fourteen years, and
reduction to the lowest enlisted grade. The CCA affirmed the
findings and sentence. United States v. Sanders, No. ACM 36443,
2008 CCA LEXIS 264, at *12, 2008 WL 2852962, at *5 (A.F. Ct.
Crim. App. July 15, 2008).
II. Facts
Over a one-month period during the summer of 2004,
Appellant anally sodomized a woman by force while using a
plastic grocery bag as a makeshift condom; struck another woman
on the head with his fists; and forcibly penetrated a third
woman’s vagina with his fingers. During the sentencing phase of
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the court-martial, the Government moved to admit a handwritten
letter found in Appellant’s pretrial confinement cell. The
letter states the following:
To Shauna, my wife, I bequeth [sic] every posession [sic]
and monetary entitlement the world, U.S. Government,
Insurance agency, etc. owes, gives, entitles me to.
To Aaron and Kyle, my sons, I give all entitlements to you
through your loving, loyal, dedicated, God-fearing mother.
I thank my parents for being my personal heroes and putting
God into my life from Day One. I bequeth [sic] $14,000
each of my entitlements to my parents Albert and Carol
Sanders.
The judge made her decesion [sic] prior to the trial. She
constantly remained in eye contact with the female
prosecutor. This was small-town justice. She didn’t
listen to our truths; only their lies.
I didn’t know these people. They lied and they’re [sic]
lies were ignored by the judge.
More importantly, I love you Shauna. I’m sorry you have to
go through this. Justice was not done.
God is calling me to him. You 3 have given me so much joy.
I can’t tell you how much I love you. You went from Bunny
Boo to the most dedicated and loving woman I’ve ever known.
I loyally and proudli [sic] served the Air Force. The
people who caused this, I’ve prayed for them and I forgive
them for lying.
Shauna, give God the glory always. He is real.
Use your resources wisely. Move on with your life, keeping
the boys 1st. Be a smart user of your resources; make your
resources work for you and multiply.
I’ve always dreamed that you and the boys would be blessed.
Now, you will be.
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United States v. Sanders, No. 09-0013/AF
I’m sorry Shauna. You’re the greatest and kindest person I
know. You are the proof that God is good.
The letter also contains in its margins Appellant’s name,
Appellant’s wife’s name, and the statements “Last Will and
Testament,” “Correction AMS,” and “I didn’t do anything I was
charged with.”
Appellant’s counsel objected to the admission of the letter
on the grounds that it was not proper evidence in aggravation or
to show rehabilitative potential; there was no factual basis to
support its admission; it was protected by the spousal
privilege; and it was otherwise privileged. After hearing
argument from both sides, the military judge ruled that the
letter was admissible as evidence of Appellant’s rehabilitative
potential. On appeal, the CCA held that the letter was
admissible as aggravation evidence and that it therefore did not
need to decide its admissibility as rehabilitation evidence.
Sanders, 2008 CCA LEXIS 264, at *11, 2008 WL 2852962, at *4.
III. Discussion
Under Article 59(a), UCMJ, an error of law with respect to
a sentence can provide a basis for relief only where that error
materially prejudices the substantial rights of the accused.
Article 59(a), UCMJ, 10 U.S.C. § 859(a) (2002); United States v.
Bridges, 66 M.J. 246, 248 (C.A.A.F. 2008) (citing Article 59(a),
UCMJ; United States v. Griggs, 61 M.J. 402, 410 (C.A.A.F.
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United States v. Sanders, No. 09-0013/AF
2005)). Appellant argues that the letter was neither proper
rehabilitation nor aggravation evidence, that it was highly
prejudicial because of its attack on the military judge, and
that in any event the military judge did not conduct the
required balancing test on the record. Rule for Courts-Martial
1001; Military Rule of Evidence 403. If there was error in the
admission of the letter, we conclude that the alleged error was
not prejudicial under Article 59(a), UCMJ.
The test for prejudice in a situation like this one is
whether the error substantially influenced the adjudged
sentence. Griggs, 61 M.J. at 410 (citing United States v. Boyd,
55 M.J. 217, 221 (C.A.A.F. 2001)). The letter contains a
farrago of bequests, assertions, excuses, and advice, some of
which are favorable to Appellant, although it also attacked the
military justice system and accused the military judge of
favoring the prosecution. With respect to the latter, the
military judge stated that she would not consider the personal
attack on her contained therein. As the sentencing authority, a
military judge is presumed to know the law and apply it
correctly, absent clear evidence to the contrary. Bridges, 66
M.J. at 248 (citing United States v. Erickson, 65 M.J. 221, 225
(C.A.A.F. 2007); United States v. Mason, 45 M.J. 483, 484
(C.A.A.F. 1997)). This Court presumes that a military judge
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follows her own rulings. United States v. Hill, 62 M.J. 271,
276 (C.A.A.F. 2006) (citing United States v. Davis, 44 M.J. 13,
17 (C.A.A.F. 1996)).
Apart from the personal attack, there is no indication that
the military judge gave significant weight to the rest of the
letter in arriving at the adjudged sentence. Appellant was
convicted of forcible sodomy, assault, and indecent assault.
For forcible sodomy, the maximum sentence includes confinement
for life without eligibility for parole. Manual for Courts-
Martial, United States pt. IV, para. 51.e(1) (2008 ed.).
Appellant received confinement for fourteen years. The victim
of the forcible sodomy charge was cruelly attacked by Appellant,
and the victims of the assault and indecent assault charges
narrowly escaped more serious injury. In light of the severity
of Appellant’s crimes, we are convinced that the admission of
the letter, if error, did not substantially influence the
adjudged sentence.
IV. Decision
The decision of the United States Air Force Court of
Criminal Appeals is affirmed.
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